Debunking the OPCA theory that you can drive without a licence



Those people who think that they can drive without a licence and that somehow the traffic legislation does not apply to them will find that the Courts do not agree.

Case extract from The Supreme Court of New South Wales – Losalini Rainima v Magistrate Freund & Ors (2008/11084)12 September 2008

“It seems that the group holds strong views about the legitimacy of aspects of this State’s traffic legislation. Certainly, the plaintiff does. Whatever the views of the group might be, this appeal turns upon the attitude of the plaintiff as it was articulated by her in the Local Court and, through her representatives, in this Court. Put shortly, as it relates to the present case, it is that the State is under a duty not to impose upon her its driver licensing regime.

The strength of her belief has cost her dearly, leading to her remaining in custody for the period from her arrest for disqualified driving on 15 December 2007 to 14 September 2008, just two days hence. She was granted conditional bail, but refused to enter it.

On 3 March 2008, after a defended hearing, she was convicted of the offence, fined, disqualified from holding a license for a further period, and placed on a five year good behaviour bond. She refused to enter the bond.

Later that day, pursuant to s97 of the Crimes (Sentencing Procedure) Act 1999, she was sentenced to imprisonment for nine months, with a non-parole period of three months, to date from 15 December 2007.


When the non-parole period expired she could not be released because she refused to accept the conditions of parole. Accordingly, she can be released only on the expiry of the nine month sentence.

On an earlier occasion, when the matter was in for mention in the Local Court, the plaintiff foreshadowed that she would be raising a constitutional defence and a challenge to the jurisdiction of the court. She subsequently arranged for the service of a notice, pursuant to s78B of the Judiciary Act 1903 (Cth), that the case involved matters arising under the Commonwealth Constitution or involving its interpretation.

As I understand it, a distinction is sought to be made between a challenge to the validity of the relevant legislation, on the one hand, and an assertion that the State does not have the power to deny an inalienable right, on the other.

 

For the purpose of this case, however, the distinction is illusory. Either the driver licensing legislation is valid or it is not.  If it is, all of us, including the plaintiff, are bound by it and no inalienable right resides within any of us to free us from the obligations which it imposes. Driver licensing is governed entirely by statute, and there is no such thing as a licence “pursuant to common law”. No credible challenge has been mounted to the legislation and there the matter must end.


Leave to appeal against the magistrate’s interlocutory order is refused. The appeal against the conviction and sentence is dismissed. If necessary, I shall hear the parties on costs.

I would remind the plaintiff that, notwithstanding the fact that she has served her prison term rather than entering into the good behaviour bond, she remains subject to the period of disqualification of her licence pronounced by her Honour. That period now extends to 19 May 2023. She must be in no doubt that, if she drives a motor vehicle during that period, she could face a further significant term of imprisonment.”

Magistrate Hidden J.
The Supreme Court of New South Wales – Losalini Rainima v Magistrate Freund & Ors (2008/11084)12 September 2008

http://www.thenewspaper.com/rlc/docs/2008/au-nswrainma.asp

Discussion Points

The definition of a “Driver” in Bouvier’s Law Dictionary, (1914 ed., Pg. 940) is “One employed in conducting a coach, carriage, wagon, or other vehicle.”

The U.S. definition of “Motor Vehicle” (Title 18 USC 31) is “Every description or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in the transportation of passengers, or passengers and property.”

“Used for commercial purposes” means the carriage of persons or property for any fare, fee, rate, charge or other considerations, or directly or indirectly in connection with any business, or other undertaking intended for profit.”

The definition of “Traffic” in Bouvier’s Law Dictionary, (1914 ed., Pg. 3307) is “Commerce, trade, sale or exchange of merchandise, bills, money, or the like. The passing of goods and commodities from one person to another for an equivalent in goods or money.”

Those indoctrinated by the OPCA movement are told to use the term “TRAVEL” or “SOJOURN” as opposed to “DRIVE”, and “AUTOMOBILE” as opposed to “VEHICLE” etc. They claim that “driving” is a business term, denoting “For Hire”, and for these reasons the activity doesn’t apply to those using their conveyance just for private use.

Unfortunately for them, these definitions from outdated foreign dictionaries make no difference at all in the eyes of police or magistrates, and they have no obligation to follow these terms at all. Roads and transport are a state matter, and each state has it’s own Roads and Traffic Act, with the glossary of terms included. This is called “Intrinsic evidence”, which is defined as information contained within the definition section of the Act. The use of the Interpretation Acts, and Hansard (a record of debates in parliament concerning that legislation) is called “Extrinsic evidence” which is defined as information which is obtained from outside of the Act.

This is NSW legislation, but you’ll find the other states are similar. This is the definitions NSW Police and the courts are obliged to follow…

LICENCE…

“driver licence” means: (a) a licence (including a conditional licence, a provisional licence and a learner licence) issued in accordance with the statutory rules authorising the holder to drive one or more classes of motor vehicle on a road or road related area, or (b) a driver licence receipt.

“driver licence receipt” means a receipt that: (a) is issued following an application for an Australian driver licence and after payment of any applicable fee, and (b) authorises the holder to drive one or more classes of motor vehicle on a road or road related area.

“learner licence” means a licence or permit issued to a person under a law in force in a State or internal Territory to authorise the person to drive a motor vehicle on a road or road related area for the purpose of learning to drive a motor vehicle.

“probationary licence” means a licence to drive a motor vehicle: (a) issued to a person who applies for a driver licence following a period of disqualification from driving: ordered by a court in Australia, or (b) issued to replace an equivalent licence issued under a corresponding driver law.

“provisional licence” means a licence (other than a learner licence) to drive a motor vehicle, issued under a law in force in a State or internal Territory, that is subject to conditions, restrictions or qualifications.

“provisional P1 licence” means a provisional P1 licence issued in accordance with the statutory rules.

“provisional P2 licence” means a provisional P2 licence issued in accordance with the statutory rules.

“relevant Australian driver licence” means: (a) an Australian driver licence, or (b) a learner licence issued under a law in force in a State or internal Territory authorising the holder to drive a motor vehicle on a road or road related area.

“restricted licence” means an authority to drive a motor vehicle issued at the direction of a court in Australia that authorises the holder to drive only in the course of the holder’s employment or in other specified restricted circumstances.

“unrestricted driver licence” means a driver licence other than a learner licence or provisional licence.

VEHICLE…

“motor vehicle” means a vehicle that is built to be propelled by a motor that forms part of the vehicle.

“vehicle” means: (a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or (b) any description of tracked vehicle (such as a bulldozer), or any description of vehicle that moves on revolving runners inside endless tracks, that is not used exclusively on a railway or tramway, or (c) any other description of vehicle prescribed by the statutory rules.

“registrable vehicle” means: (a) any motor vehicle, or (b) any trailer, or (c) any other vehicle prescribed by the statutory rules for the purposes of this definition.

“registered” and “registration” in relation to a vehicle-see section 7.

TRAFFIC…

“traffic” includes vehicular traffic and pedestrian traffic and all other forms of road traffic.

DRIVE/DRIVER…

“drive” includes: (a) be in control of the steering, movement or propulsion of a vehicle, and (b) in relation to a trailer, draw or tow the trailer, and (c) ride a vehicle.

“driver” means any person driving a vehicle, and includes any person riding a vehicle.

http://www.austlii.edu.au/…/n…/consol_act/rta2013187/s4.html

“THE RIGHT TO TRAVEL” IS NOT A RIGHT TO “MOTORISED TRANSPORTATION”…

[I will be researching the equivalent case law in Australia, (and adding it to this post) but the following rulings in U.S. case law are established precedents in that jurisdiction, so I’m quite sure that Australian common law would hold similar findings…]

The U.S. Supreme Court has recognized a protected right to interstate travel, (Saenz v. Roe) and the Sixth Circuit has recognized a protected right to intrastate travel, i.e., “a right to travel locally through public spaces and roadways,” (Johnson v. City of Cincinnati)

Yet, the district court held the protected right to travel does not embody a right to a driver license or a right to a particular mode of transportation, citing Duncan v. Cone, 2000 WL (holding “there is no fundamental right to drive a motor vehicle.”)

John Doe No. 1 v. Georgia Dep’t of Public Safety, observed that “the Circuit Courts have uniformly held that burdens on a single mode of transportation do not implicate the right to interstate travel”

Further, the district court held that the right to travel, whatever its contours, is not infringed by Chapter 778 because a person who receives a certificate for driving is able to operate a motor vehicle just like a person who receives a driver license. (LULAC, 2004) Potential difficulties that may be experienced by one who does not have a driver license to use for identification purposes, were held not to implicate the right to travel.

In Saenz, the Supreme Court identified three components of the right to travel: “It protects the right of a citizen of one State to enter and to leave another State, the right to be treated as a welcome visitor rather than an unfriendly alien when temporarily present in the second State, and, for those travelers who elect to become permanent residents, the right to be treated like other citizens in that State.”

“A state law implicates the right to travel when it actually deters travel, when impeding travel is its primary objective, or when it uses a classification that serves to penalize the exercise of the right.” ~ Attorney General of New York v. Soto-Lopez

Tennessee’s issuance of certificates for driving, which confer all the same driving privileges as driver licenses, is clearly not designed primarily to impede travel and can hardly be said to deter or penalize travel. The state’s denial of state-issued photograph identification to temporary resident aliens may arguably result in inconvenience, requiring the bearer of a certificate for driving to carry other personal identification papers, but this inconvenience can hardly be said to deter or penalize travel. To the extent this inconvenience burdens exercise of the right to travel at all, the burden is incidental and negligible, insufficient to implicate denial of the right to travel.” ~ Town of Southold v. Town of East Hampton

U.S. case law recognises that “even citizens do not have a constitutional right to the most convenient form of travel. Something more than a negligible or minimal impact on the right to travel is required before strict scrutiny is applied.” ~ State of Kansas v. United States

Section 92 Freedom of travel…

Section 92 of the constitution has actually nothing to do with freedom of travel between the states, or some constitutional right to drive unregistered and unlicensed, as Australian Freeman like to imply, but rather, the concept of FREE TRADE between the states…

In the case of Cole v Whitfield, in a unanimous decision, the High Court identified the full extent of s. 92:

“The purpose of the section is clear enough: to create a free trade area throughout the Commonwealth and to deny to Commonwealth and States alike a power to prevent or obstruct the free movement of people, goods and communications across State boundaries. The expression “free trade” commonly signified in the nineteenth century, as it does today, an absence of protectionism, that is, the protection of domestic industries against foreign competition…”

Accordingly, s. 92 prohibits the Commonwealth and the States from imposing burdens on interstate trade and commerce which: 1. discriminate against it by conferring an advantage on intrastate trade or commerce of the same kind, and 2. are protectionist in character.

POLICE POWERS AND IDENTIFICATION

A common Freeman argument in Australia is that police have no power to ask for identification. The argument seems to be based around DPP v Hamilton [2011] VSC 598 (aka Hemingway v Hamilton or ‘Hemingway’) where the Supreme Court ruled that police have no unfettered right to stop a person arbitrarily.

In the case, Lieutenant Senior Constable Hemingway was on patrol in the Melbourne CBD, and was flagged down by an employee of Taco Bill. The employee informed Hemingway that two men had left the restaurant without paying, and indicated one of them was Hamilton. When Hemingway approached Hamilton, he fled on foot. Hemingway pursued Hamilton in his police car and finally arrested and charged him with resisting arrest.

The court was asked if police had a right to stop a person on a mare suspicion. The case circulated around the common law powers of arrest. A common law arrest requires a belief an offense had been committed, informing the person they are under arrest, why they are under arrest, physical contact and the person understanding why they are under arrest: (see eg George v Rockett (1990) 170 CLR 104; Collins v Wilcock [1984] 1 WLR 1172; ).

Even though Hemingway had been given indication that Hamilton may have committed an offense, only one element of the 5 needed to complete an arrest were fulfilled before the chase began.

The Magistrate struck the charge out for three reasons:

1. The arrest occurred after the chase had finished, not before it started. He cannot have been resisting arrest if the arrest had not been completed in the first place.
2. Police were relying on information from the Taco Bill employee and not their own investigation, this does not satisfy ‘belief’.
3. While a person 1)on foot2) has a moral obligation to stop when asked (and not under arrest), they do not have a legal obligationtooltip({ tip: "#footnote_plugin_tooltip_text_1", tipClass: "footnote_tooltip", effect: "fade", fadeOutSpeed: 100, predelay: 400, position: "top right", relative: true, offset: [10, 10] });

Freemen argue this case provides a blanket immunity from being stopped by police for identification, even when driving, but miss two crucial elements:

– Hamilton was on foot, not in a car.
– Police didn’t have sufficient grounds for ‘belief’.

CAN POLICE ‘STOP’ A PERSON AND ASK FOR ID AT ANY TIME?

Generally speaking no. Unless you are driving a car, in a designated search area, believed to have committed an offense or know something about a serious offense police have no legal grounds to ask for ID.

However, this is not a blanket protection and does not prevent police from pulling you over. Driving a car is a potentially dangerous task. This is why it is regulated; cars are big metal things full of explosive liquid traveling at speed, it’s a good idea to check if the person is allowed to do it.

A similar argument in centres around Kaba v DPP, in which the magistrate ruled that police do not have an unfettered right to stop a vehicle. While this is true to a certain extent, OPCA theorists seem to disregard the fact that Kaba was not the driver, and also that the decision was overturned on appeal regarding s 59(1) of the Road Safety Act.

http://www.austlii.edu.au/…/…/consol_act/rsa1986125/s59.html

as affirmed in the Victorian Supreme Court decision of DPP v Kaba [2014] VSC 52 (18 December 2014)

at 486 “For the reasons given in this judgment, the ruling of the magistrate will be quashed because his Honour committed an error of law upon the face of the record in relation to the interpretation of s 59(1) of the Road Safety Act. Contrary to his Honour’s interpretation, police do have a power of random stop and check under that provision.

Credit to author : The contents of this Article are from the research of Robert Sudy and published on his Facebook Freeman Delusion Page.



References   [ + ]

1. on foot* has a moral obligation to stop when asked (and not under arrest), they do not have a legal obligation
2. has a moral obligation to stop when asked (and not under arrest), they do not have a legal obligation

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